GSB# 2003-3099
UNION# OLB606/03
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union (Cahill)
Union
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE
Nimal V. Dissanayake
Vice-Chair
FOR THE UNION
Kourosh Farrokhzad Engelmann Gottheil Barristers and Solicitors
FOR THE EMPLOYER
Dan Palayew Ogilvy Renault Barristers & Solicitors
HEARING
March 15, July 12, 13, November 15, 16, 2004; February 24, 25, June 15, 16, July 29, 2005.
Decision
This decision relates to a discharge grievance dated November 19, 2003 filed by Mr. Patrick Cahill (“grievor”). The grievor started with the LCBO as a casual Customer Service Representative (CSR) in October 1983 and became permanent in 1986. In April 2003 he was promoted to the Store Manager level 1 position. He held the position of Store Manager at the LCBO store in Morrisburg, Ontario, at the time of his discharge. The discharge letter dated November 13, 2003 signed by District Manager Mr. Rick Wood reads:
Further to my correspondence on July 9, July 25, August 1, August 11, October 2 and October 15, as well as the meetings held with you and your Union Representatives, Bruce Guilbeault, Elie Naufal and Mike Stanton on November 10, 2003, the LCBO has now had the opportunity to review the information it has at the present time.
As a result of your actions related to these matters and after consideration of all the information available, I must conclude that disciplinary action is warranted in the form of termination for just cause, effective immediately.
Furthermore, your criminal conviction and attitude are incompatible with your position. As a Store Manager, you hold a position of trust which has been irrevocably breached through your actions. Any one of these matters alone would be sufficient to support our decision to terminate your employment.
Accordingly, you are directed to return any and all property of the LCBO that you may have in your possession to my attention as soon as possible.
While the letter of termination refers to the grievor’s “criminal conviction and attitude” being incompatible with his position, at arbitration the conviction (for driving while his licence was under suspension pending a charge of drunk driving) was not put forward as part of the just cause for his discharge. The employer’s position at arbitration was that any one of three incidents of misconduct by the grievor was just cause for his termination. In the alternative, it was submitted that the conduct when combined constituted just cause for termination.
The allegations against the grievor fall into 3 categories:
(1) That the grievor engaged in sexual harassment by making inappropriate comments at work.
(2) That the grievor requested a casual employee during work hours to purchase a quantity of marijuana for him.
(3) That the grievor, while on paid time, supplied a contractor’s crew with alcohol, and consumed alcohol himself with the crew at the store to a point of intoxication.
My first task is to make factual findings with regard to each of the above allegations.
Sexual harassment
In May 2003 a casual employee at the Morrisburg Store, Ms. Michelle Urquhart brought to the attention of Mr. Rick Wood, the District Manager, a number of comments of a sexual nature the grievor had allegedly made at work. Mr. Wood advised Ms. Urquhart to contact the union and make notes of the incidents. On June 4, 2003 Ms. Urquhart filed a grievance against the employer alleging a violation of article 2.1(b). The grievance was settled on July 23, 2003 with the employer undertaking to fully investigate Ms. Urquhart’s allegations of sexual harassment. A Notice of Intended Discipline (NOID) dated July 9, 2003 had been issued to the grievor informing him that disciplinary action may be taken against him “as a result of alleged inappropriate comments made to a female employee by yourself on numerous occasions”. On July 13 the grievor responded, essentially stating that any comments he may have made to the female employee were made in “a good sprit tone” and not in bad faith, and also suggesting that the employee may have been motivated to complain because of a dispute she had with him in relation to the number of hours of work the grievor had given her.
At the time of the alleged comments by the grievor, he was the manager of the Morrisburg Store. Ms. Urquhart was one of two casual employees who worked under him. She testified that from the time the grievor arrived as manager in April 2003, she felt very uncomfortable going to work because of the frequent comments the grievor made towards women, and particularly to her. She testified about the following alleged incidents.
(1) One day at work, the grievor asked her if she had just had a hair cut. She said “no”. He commented, “you look like trash”.
(2) On another occasion, in the presence of a male sales representative who was visiting the store, the grievor called her over and handed a glow-stick and asked her if she knew what it is used for. She said, ”No.”. He responded, “Maybe you can take it home and find different ways of using it.”
(3) The grievor often talked about always having a woman lined up every day.
(4) One day a young girl came into the store and was talking to the grievor. Once she had left, the grievor said “Michelle, she is the next on the chopping block. She like me.”
(5) One day she met the grievor in the LCBO Store parking lot. He told her that a girl had come to the store and that she had “big hooters”.
(6) Ms. Urquhart heard the grievor on the office phone calling a girl named Judy. The first thing he told her was, “Where is my blow job?” Ms. Urquhart left the office shaking her head in disgust.
Ms. Urquhart testified that she did not complain to the grievor directly because she did not think it would make any difference and was unsure how he would react. Instead he spoke to Mr. Wood and to union representative, Ms. Shelly Churchill. She provided written notes about the alleged comments to both of them.
Under cross-examination, Ms. Urquhart agreed that as a result of the grievor’s interpretation of what constituted a split shift under the collective agreement, she was not paid for several hours of work she had done. She grieved it, and during the grievance procedure, Mr. Wood disagreed with the grievor’s interpretation. Her grievance was resolved and she got paid for the hours in question.
In chief, the grievor unequivocally denied that he had told Ms. Urquhart that she looked like trash. Similarly he denied the comment attributed to him in allegation 2, and in fact denied even having seen the glow-stick before it was filed as an exhibit at arbitration. He denied allegation 3 and explained that he did not associate with anyone in Morrisburg. He said, “I go to work and get back to my hotel.”
With regard to allegation (6), union counsel asked if the grievor recalled making that statement on the phone and he simply answered, “No.” Allegations 4 and 5 were not addressed in chief.
Under cross-examination, employer counsel reviewed Ms. Urquhart’s testimony on the “glow-stick” incident and asked, “Did it happen?” The reply was “No.” When asked “So, she is lying?”, the grievor stated “Obviously.” Counsel asked, “What motivation do you think she will have to lie?” and the grievor replied, “Just to build a case against me.” Counsel then confronted the grievor with a written statement provided by Mr. Peter Hagerman, a Sales Representative from Bacardi Canada Inc., in which he in essence confirmed that he witnessed the incident as alleged by Ms. Urquhart, and asked if Mr. Hagerman was lying also. The grievor answered, “Yes.” When asked what the motivation would be for a Bacardi rep to lie, the grievor replied “No idea.”
In cross-examination, counsel referred to the response the grievor had provided to a NOID the employer had issued “as a result of alleged inappropriate comments made to a female customer”. In part, the grievor wrote, “As for alleged inappropriate, did I say something or did I not. Was it taken wrong or did she assume something? Or wish?” Employer counsel repeatedly asked what the grievor meant by “or wish”. The grievor did not answer the question. Instead he suggested that he was getting all these allegations because the “townspeople” were trying to “railroad me out of town”. He signed his response to the NOID as “New kid in town”. He denied he had done anything wrong. Then the following exchange ensued:
Q. Was this customer also trying to run you out of town?
A. Maybe.
Q. What about Peter Hagerman, the Bacardi Rep?
A. Yes.
Q. Michelle Urquhart?
A. Yes.
Q. Cam Maclennan?
A. Yes.
Q. Was Rick Wood trying to run you out of town?
A. Very possible.
Q. So everyone was trying to run you out of town?
A. Not everyone. I met some good contacts also.
Q. So some people liked you?
A. Yes.
Q. But the others were trying to run you out of town?
A. That’s my feeling.
On the basis of the evidence I have no hesitation concluding that the grievor engaged in each of the alleged incidents of misconduct alleged. The glow-stick incident was witnessed by Mr. Hagerman. Mr. Cam Maclennan, a casual CSR testified that he witnessed the “You look like trash” comment. I did not find the grievor to be credible. By his conduct the grievor engaged in verbal sexual harassment, which has no place in the workplace. It was culpable conduct which clearly justified a disciplinary response from the employer.
The Marijuana incident
This incident took place in February, 2003 at the LCBO Store in Barrhaven, Ontario. It was a small store with a workforce consisting of the grievor as Senior Full-time CSR and two casual employees, Kyle Higgins and Mary Sue Cardill. Since there was no store manager, the grievor ran the shifts in his capacity as Senior Full-time CSR.
It is unnecessary to review all of the detailed evidence tendered by Ms. Cardill and Mr. Higgins because the grievor admits that he did ask Mr. Higgins to purchase a quantity of marijuana during the shift that night. The evidence indicates that the grievor did a “cash back” using his debit card and handed an amount of cash to Mr. Higgins. Mr. Higgins left the store, met an acquaintance at a Tim Hortons, and purchased some marijuana. He brought it back, and put it under a jacket on the seat of grievor’s car, which was parked in the LCBO parking lot. At some point, the grievor brought the marijuana into the store and split it up inside the washroom. There is no allegation that the grievor smoked any of it. The disputed issues are whether the grievor obtained the marijuana at the request of a sick friend, who had told him that marijuana would provide her some relief; whether he told Mr. Higgins that it was for a friend; and whether the grievor kept after Mr. Higgins asking him three times to get him some marijuana.
I find no evidence which casts doubt on the grievor’s testimony that he wanted marijuana for a friend and not for his personal use. There is no evidence that the grievor was a user of marijuana. Moreover, Mr. Higgins received a NOID for his role in this incident. In his response to the NOID dated August 1, 2003, Mr. Higgins wrote, “... he mentioned to me that he was interested in purchasing some marijuana for a friend of his ...” However, I do find that the grievor was persistent with Mr. Higgins. The first time the grievor asked Mr. Higgins to buy some marijuana, Mr. Higgins said, “It’s stupid”, and did not agree. It was when the grievor asked for the third time that Mr. Higgins finally agreed.
Even accepting that the grievor did not obtain the marijuana for his personal use, it was still a serious misconduct on his part to use his influence on a casual employee to purchase an illicit drug on his behalf, and to bring such illicit drug into LCBO premises. Such conduct was totally incompatible with his status as an employee of the LCBO, particularly one who for all intents was in charge of the store. Just cause for discipline was certainly warranted by the grievor’s conduct.
The alcohol incident
The grievor, as well as a number of employer witnesses, testified about this incident. However, all of that detailed evidence need not be reviewed here. The evidence is that on or about May 29, 2003 a 3-man crew from a contracted company, Briteway Building Maintenance, had come to the Morrisburg LCBO Store to strip and wax the floor. The grievor was the manager of the store. The work was done after the store closed for the day. The grievor remained on duty in order to supervise the Briteway crew. The crew consisted of Mr. Scott Bertrand (Briteway owner’s son), Mr. Cole Eden and Mr. Ron Hutt. Mr. Bertrand and Mr. Eden were approximately 20 years old. The grievor admits that he served the three crewmembers beer that night and that he joined in the drinking. He also admits that when LCBO employee, Mr. Cam Maclennan dropped in to bring a fan to help with the drying of the floor, he offered beer to him and that he declined.
The main conflict between the grievor and the employer witnesses was about the amount of alcohol consumed that night. Mr. Bertrand testified that while waiting for the floor to dry between coats of wax, he personally consumed 8 to 12 cans of beer between 11:30 p.m. and 1:30 a.m., and that the grievor and Mr. Eden probably had the same quantity, because “we kept up with each other”. According to Mr. Bertrand, Mr. Hutt had left with the truck around 12:30 a.m. because he had too much to drink. Mr. Bertrand testified that around 1:30 a.m. the grievor, Mr. Eden and himself went to Nick’s Sports Bar across the street. At Nick’s each of them had a couple of more beers while playing pool. Then they returned to the store. The grievor came up with a “mickey” of Fireball, a 33 percent proof spirit. The three of them had 3 shots of fireball each. Mr. Bertrand testified that by the time his mother picked him up around 4:00 a.m., each of them (himself, Mr. Eden and the grievor) had consumed 15 to 16 beers and 3 shots of Fireball. Mr. Bertrand testified that he felt more comfortable drinking because he was in the company of the store manager. He testified that all three were intoxicated.
During cross-examination Mr. Bertrand was questioned about the drinking. However, his evidence as to the quantity consumed was not challenged. He agreed that the Fireball may have been a 200 ml bottle. While confirming that all three were intoxicated, Mr. Bertrand agreed with counsel that they were not severely intoxicated. He reiterated that each had consumed 15 to 16 beers and 3 shots of Fireball.
The grievor’s evidence as to the amount of alcohol consumed was dramatically different. He testified that he had purchased a 24-pack of beer earlier in the day. He plugged in the store wine-cooler and put a 6-pack of beer to chill. After the crew had applied the first coat of wax, they sat in the back waiting for the floor to dry. At that time, the grievor offered the three workers a beer. He explained that from past experience he believed that a “little hospitality helps to get a better job done.” At about 9:15 p.m. the 4 of them had one can of beer each. Then they each had another beer while eating some sandwiches. According to the grievor the Fireball was consumed at this time. Thus it was shared between the four, with each getting 50 ml in a little sampling glass. He explained that Fireball was a new product and each had “a little taste” of it. Then Mr. Hutt left. After the 3rd coat of wax had been applied, they had another beer each.
The grievor testified that each had a beer for every coat of wax. Thus by the time, the 3rd coat of wax was completed around midnight, the grievor, Mr. Bertrand and Mr. Eden had each consumed 3 beers. Mr. Hutt had left after having two beers. Then the 4th coat of wax was applied. While waiting for that to dry, the three of them decided to go over to Nick’s Sport Bar to play pool. The grievor testified that while playing two games of pool he had one beer but did not even finish it. However, Mr. Bertrand and Mr. Eden had no alcohol at Nicks because they were asked for identification and they had none. They returned to the LCBO store and a fifth coat of wax was applied, after which the crew packed up. Around 3:30 a.m. Mr. Bertrand called his mother for a ride home.
According to the grievor, out of the 24-pack, between the four of them, 17 to 18 cans of beer had been consumed by 3:30 a.m. In addition, each had approximately 50 ml of Fireball. The grievor denied that anyone was intoxicated because each had at most 4 or 5 beers plus the taste of Fireball over a long period from 9:30 p.m. to 3:30 a.m.
There are many conflicts between the grievor’s testimony and that of Mr. Bertrand. Most significantly, Mr. Bertrand testified that he, the grievor and Mr. Eden had consumed 15 to 16 beers each. According to the grievor the four of them in total consumed only 17 to 18 beers that night. Mr. Bertrand testified that at the time the Fireball was served Mr. Hutt had already left, and that the remaining three had 3 shots of Fireball each. Also Mr. Bertrand testified that he and Mr. Eden did have beer at Nick’s Sports Bar. Finally Mr. Bertrand testified that he, Mr. Eden as well as the grievor were intoxicated.
During cross-examination the grievor stated that in the past, he had seen other store managers and assistant managers provide hospitality as he did, and added, “The difference is they didn’t get caught. I guess I did.” He stated that he got caught because someone “squealed” on him. He explained that his hospitality in fact benefited the LCBO because it got 5 coatings of wax when the contract required only 4. Employer counsel asked if in his mind what he did was “fine”. The grievor replied, “yes and no. Yes because it was a hospitality and shouldn’t have exploded as it did. As for the ‘no’, I was drinking on company premises.” At first he disagreed that he was on company time, but agreed later that he was being paid during the time in question. The grievor was confronted with Mr. Bertrand’s testimony as to the amount of alcohol consumed and asked if Mr. Bertrand was lying. The grievor replied “yes”. He also replied “yes” when asked if Mr. Bertrand was wrong when he said that all of them were drunk.
I find on the evidence that on the night in question the amounts consumed were as described by Mr. Bertrand. He was an uninterested witness, who had not met the grievor prior to or since the night in question and testified under summons. During his cross-examination his testimony as to the quantity of alcohol consumed was not challenged. He could not have had any motive to lie about the amount of alcohol, unlike the grievor who had much to gain by minimizing the amount of consumption. Besides, Mr. Bertrand’s mother, Mrs. Heather Bertrand, also testifying under summons as an uninterested third party, clearly contradicted the grievor’s testimony. She testified that all three (the two crew members and the grievor) were drunk when she came to take her son home around 4:00 a.m. She testified that she could smell alcohol on them, that their speech was slurred and they were acting silly. She had no doubts about the fact that they were drunk and was quite upset with her son.
I find that the grievor served alcohol to the crew in LCBO premises and while he was on duty. He himself participated in the drinking and was in a state of intoxication. Even though the store was closed to the public at the time, his conduct was clearly culpable and contrary to policy. His conduct was even more unbecoming because he was the store manager.
In summary, I have concluded that just cause for discipline has been established with regard to each of the three incidents relied upon by the employer. I agree with the employer that in each incident the grievor engaged in serious misconduct. Sexual harassment, even if only verbal, has no place in the workplace. The employer’s published policies made that clear. Similarly, particularly considering the position of authority the grievor held as Store Manager or Senior Full-time CSR running the store, his conduct in relation to the purchase of marijuana and the consumption of alcohol was also serious. This is more so considering the business the LCBO is engaged in. The issue is whether in all of the circumstances, his misconduct was sufficient cause for the ultimate penalty of discharge.
Prior to considering that issue, I observe that the union appeared to suggest that the trauma the grievor had suffered when he was held at gun-point during the robbery of a LCBO store may have caused, or contributed to the grievor’s misconduct. I find no merit in that suggestion which is not substantiated by any evidence. Similarly, I find the grievor’s implication that Ms. Urquhart had fabricated or exaggerated allegations of sexual harassment because of her dispute with him about the split shift issue to be totally unfounded. An uninterested witness, the sales representative from Bacardi clearly corroborated Ms. Urquhart’s testimony with regard to the glow-stick comment. Mr. Maclennan corroborated the “You look like trash” comment. While the grievor did not directly assert this, there was some insinuation that the grievor may be addicted to alcohol and that this addiction may have contributed to some or all of the grievor’s misconduct. I find no evidence to support any such conclusion. The evidence does not establish that the grievor was an alcoholic, or that any addiction contributed to any of the incidents in question. Specifically I find that there is no evidence, medical or otherwise, indicating that the grievor was entitled to accommodation by the employer. On the other hand, the unfounded claims by the grievor of improper motivation - such as people trying to run him out of town, and others building a case against him - causes me to doubt the grievor’s credibility and honesty generally.
The union’s primary position was that the discharge imposed on the grievor should be declared void on the grounds that the employer had unreasonably delayed confronting the grievor with the allegations against him. Union counsel pointed out that the first alleged sexual comment attributed to the grievor occurred on May 17, 2003. He was confronted only on July 9, 2003. The marijuana incident occurred in February 2003 and came to the employer’s attention in April 2003. The grievor was first confronted on August 11, 2003. The alcohol incident was in May 2003. The grievor was confronted only on August 11, 2003. Citing Re AGF Industries Ltd., 1998 CanLII 30077 (ON LA), 75 L.A.C. (4th) 336 (Herlich)and Re Delta Chelsea Hotel, (2002) 111 L.A.C. (4th) 22 (Surdykowski) counsel submitted that the employer’s delay in confronting the grievor with the allegations “prejudiced his ability to provide a full answer to the allegations”.
Re Delta Chelsea Hotel (supra) is distinguishable from the case before me. There article 12.01 of the collective agreement specifically provided that after the employer becomes aware of an incident it “has a reasonable period of time to investigate the matter”. Not surprisingly, the arbitrator held that the provision gave employees a substantive right, and observed at p. 32: “The question in this case is whether the hotel took more than a reasonable period of time to investigate the alleged misconduct on January 18, 2002, such that the grievor was denied her substantive rights under clause 12.01". In the present case, no similar substantive right under the collective agreement exists.
Nevertheless, there is general arbitral authority supporting a principle that undue delay in imposing discipline may in certain circumstances render the discipline voidable. See, Re AFG Industries Ltd. (Supra). However, before that principle is applied a number of factors must be considered. Thus, arbitrator Herlich, after reviewing a number of authorities concludes at p.34: “Thus, and described more broadly, the factors to be considered include the length of delay, the reasons for delay and its prejudicial effect.
A review of the evidence indicates that there was some reasonable explanation for at least some of the delay. For example, with regard to the marijuana incident, the evidence is that Ms. Cardill took some time to decide whether she should bring her observations to the employer’s attention. As soon as she did so, she went off sick over an extended period. The evidence is that the employer attempted several times to meet with her, but could not because she was still away.
In any event, even if the employer had no reasonable excuse for the delay, this is not an appropriate case to void the discipline imposed. In Re AGF Industries, the delay issue was argued as a preliminary motion before any evidence on the grievance had been received. Arbitrator Herlich held as a matter of principle that even in the absence of evidence of actual prejudice, prejudice resulting from the delay can be inferred or presumed. I agree that in certain cases that is so. Indeed arbitrator Herlich quotes from two such cases. In Re Via Rail Inc. (M.G. Picher, October 14, 2988) the arbitrator wrote:
It is, in my view, prima facie, inconsistent with the exercise of an employer’s authority to impose discipline to delay any communication whatever respecting the incident giving rise to the discipline to the employee concerned for a period of close to three months. From a practical standpoint the employee is put at a severe disadvantage, as he or she may have no recall of an event to which the employee attached no particular significance at the time but for which the Corporation as retained a documented negative report from the outset.
In Re Manitoba Pool Elevator Brandon Stockyards, 1993 CanLII 16667 (MB LA), 35 L.A.C. (4th) 276 at p. 287, the arbitrator observed:
I accept that reasonably expeditious discipline is a matter of general arbitral principle. In the present case, despite the absence of evidence from the grievor as to actual prejudice, I would, if necessary, be prepared to find prejudice, under the over-all circumstances of this case. Yard receiving workers at the Brandon pool must deal with numerous customers and numerous deliveries on a daily basis. To confront an employee with the specifics of a single, brief encounter with a customer eight and a half months after the fact is inherently unfair and prejudicial.
In Re AFG Industries itself, arbitrator Herlich was prepared to infer prejudice with regard to some of the allegations against the grievor. At p. 344-45 he wrote:
Turning then to the final general heading – what is the impact of the delay in this case? For various reasons the grievor was advised, in excess of four months after the fact, that on two particular occasions he was observed improperly smashing good glass and yelling (allegations which his counsel advises us are denied). The grievor’s job involves separating good glass from bad and placing the former on pallets and insuring that the latter is directed to the cullet system. The grievor spends his entire day “picking-off” sheets of glass. Bad glass is regularly required to be broken. Notwithstanding Mr. McFadden’s forceful and able argument to the contrary, it appears to me that the nature of the allegations against the grievor are, by analogy and for the purposes of this portion of the inquiry, similar to those in the Air Canada case. Essentially, it is alleged that the grievor has performed an impropriety in relation to the manner in which he has conducted his duties – it is asserted that one (or in this case two) of a series of similar transactions has been deliberately mishandled by the grievor. I have no hesitation in concluding that to ask the grievor, over four months after the fact, to recall the two specific transactions out of the many in the interim; to ask him, for example, to recall whether the breakage involved bad or, as alleged, good glass is simply unfair and prejudicial.
However, he immediately went on to distinguish between different kinds of allegations as follows:
In arriving at this conclusion, I have considered the nature of the allegations from a very specific perspective. If we ask someone “were you hit by the truck four moths ago?” or “did you rob the bank four months ago?”, we do not anticipate a response such as “I might have, I don’t recall – why didn’t you ask me sooner?” There are some events one simply does not forget. Similarly, as in the National Grocers case, even when memory is otherwise faulty or unreliable, technology, such as video, may provide a useful prod, or even proxy, for faded recollection. But where, as here and in the Air Canada case, the stale allegations relate to a variant of a function which an employee regularly performs over and over both daily and from day to day, it should come as no surprise that a prolonged delay in bringing a specific and impugned transaction to the employee’s attention will have a growing negative impact on the employee’s ability to recollect what transpired at the relevant time.
With regard to the allegations of sexual comments, apart from the glow-stick incident, it may have been understandable if the grievor had testified that he had no recollection whether or not he made the particular sexual comments. However, the same cannot be said with regard to the allegations relating to the marijuana and alcohol incidents. Those are not routine events. The grievor ought to be able to recall those events despite the passage of time.
However, in light of the grievor’s own testimony, I cannot infer prejudice with regard to any of the allegations in the case before me, including the sexual comments. As arbitrator Herlich observed “obviously there is a difference between a case where there is no actual evidence of prejudice and one where it is affirmatively established that no prejudice has resulted from the delay”. The present case falls into the latter category. As noted, at the time the delay issue was argued before me, I had received all of the evidence relating to the grievance, including the evidence of the grievor. The uncontradicted evidence is that the issue of delay was not raised by the grievor or the union any time prior to arbitration. With one exception, the grievor had not claimed that he had difficulty recalling any of the events in question. The one exception was in relation to alleged inappropriate comments he made to a customer. In his response to the NOID the grievor had indicated an inability to recall. However, on the stand in relation to the same event, the grievor testified that he clearly recalled the event. In fact, he was cross-examined as to how his memory was so vivid during testimony, when some months earlier he had stated that he could not recall.
In relation to each of three allegations - the sexual comments, the marijuana incident and the alcohol incident - the grievor did not indicate any difficulty recalling during his evidence in chief. He proceeded to testify, either denying the allegations or giving his own version of what occurred, with no apparent difficulty in recalling events. Moreover, during cross-examination, with regard to each allegation, he was asked explicitly how sure he was or how clear his recollection was.
With regard to the marijuana incident, the grievor insisted that he asked Mr. Higgins only once (not three times as Mr. Higgins had testified) and denied that Mr. Higgins had said, “No, it’s stupid.” Then the following ensued.
Q. Your recollection is clear on that?
A. Yes.
Q. This is some 2½ years later, but your recollection is clear?
A. On this, yes.
Q. Your memory is clear on what happened that night?
A. Yes.
Q. Except that you may have told Kyle Higgins why you wanted the marijuana?
A. Yes.
Similarly he clearly denied the glow-stick comment as well as the other alleged comments about which Ms. Urquhart had made notes and testified about. At no time did he say that due to passage of time he had difficulty recalling. He not only denied making the comments, but he claimed that all of those allegations were a result of the desire by those making them, to drive him out of town. He asserted that Ms. Urquhart had fabricated the allegations in order to retaliate against him because he had turned down her claimed hours of work.
In relation to the alcohol incident, the grievor clearly disagreed with many aspects of the testimony of the employer witnesses, some of which have been reviewed above. During his cross-examination, counsel pointed out that Mr. Bertrand had testified that that all three were drunk and that his mother had also testified to the same effect. Then the following exchange occurred:
Q. So Mrs. Bertrand is also trying to run you out of town?
A. Who knows.
Q. It could be?
A. Could be.
Q. There are many other conflicts between your evidence and that of our witnesses - are you sure your recollection is clear about that night?
Y. Yes.
Q. Crystal clear?
Y. Yes.
Employer counsel ended his cross-examination by pointing out to the grievor that he had testified that his recollection about the glow-stick incident and the alcohol incident was very clear. It was suggested to the grievor that if his recollection was so clear now, his recollection would have been just as clear or better when he was first confronted with the allegations in August 2003 and at the discipline meeting in November 2003. The grievor agreed.
It is clearly established from the evidence, specifically from the grievor’s own testimony, that any delay on the part of the employer has had no prejudicial effect on the grievor’s ability to respond to the allegations levelled against him during the investigation stage or at arbitration. Therefore, on that basis alone, there is no justification for voiding the discipline.
Now I turn to the union’s alternate position that in all of the circumstances the penalty of discharge was excessive. This requires an examination of the seriousness of the grievor’s culpable conduct and any mitigating factors. The grievor was a long service employee with just under 23 years of service with the LCBO. The evidence is that his performance has been satisfactory or better, except in the last two years when he had ratings of “needs improvement”. His past record of discipline (which is subject to a 3 year sunset clause) is as follows:
A written reprimand dated September 18, 2001 for failure to report for a scheduled shift without notice.
A written reprimand dated December 11, 2001 for tendering a transaction in violation of LCBO policy.
A one-day suspension without pay on August 27, 2002 for a further failure to report for a scheduled shift without notice.
A written reprimand dated January 22, 2003 for failure to provide appropriate documentation with respect to an absence from work to attend court.
It is to be noted that none of the prior instances of discipline relate to the type of misconduct found in this case, i.e. sexual comments, alcohol or drugs. While there is evidence that he was counselled about inappropriate comments made to a customer, no discipline had been imposed.
As mitigating factors his long service clearly favours the grievor. While he does not have a clean discipline record, the discipline he had in the past has been relatively minor. Three written reprimands and a one-day suspension, none of which involved the types of culpable conduct established in the present case.
On the other hand, I find militating against the grievor, his lack of true remorse and his lack of candour at arbitration. He denied wrongdoing in the face of overwhelming and convincing evidence of his wrongdoing. He was quick to attribute ulterior motives - most of which I found to be totally incredible - to those complaining against him. When he did admit wrongdoing, he attempted to minimize the gravity of his conduct with untrue assertions and explanations. Not once did he acknowledge unqualified wrongdoing on his part.
Union counsel submitted that the employer had engaged in a bad faith attempt to justify the grievor’s discharge by delaying a decision and then “bundling up” three unrelated incidents. “Bad faith” implies an intentional strategy. I have no evidence that the employer intentionally delayed imposition of discipline in order to accumulate a record which would justify the grievor’s discharge. Nevertheless, it is clear that delay occurred. The three incidents of misconduct happened over a period of time. Discipline was not imposed as the events occurred. Instead they were allowed to accumulate over a period of time. The principle of “progressive discipline” or “corrective discipline”, is based on the theory that an employee must be given a chance to learn from and change his ways after suffering the pain of discipline. Had the grievor been disciplined promptly as the misconduct occurred, he would have had that opportunity. Even though the delay in imposition of prompt discipline was not intentional, and mostly a result of reasons beyond the control of the employer - I find that the way the grievor’s conduct was allowed to continue to accumulate without any disciplinary sanction for a period of several months, offends the logic behind the principle of progressive discipline.
I do not find that the incidents of misconduct, taken in isolation, justify the discharge of an employee with 23 years of service, who has had a prior disciplinary record of three written reprimands and a one day suspension - all for unrelated types of misconduct. The fact is that the grievor had never been previously disciplined for the types of misconduct established in this case. The most severe penalty he had received is a one-day suspension. I find that the grievor, in these circumstances, has not received the benefit of progressive discipline.
Having said that, I am in total agreement with employer counsel, that the grievor did not demonstrate true remorse for his misconduct. Nor was he truthful and honest at arbitration. However, despite the serious concern I have as to whether or not the grievor has fully realized that he had engaged in serious misconduct, in all of the circumstances I find that discharge was an excessive penalty. The grievor should realize that any further misconduct on his part would likely leave him with no recourse. It is up to him to take responsibility. If he feels that his drinking is affecting his conduct adversely as he appeared to suggest, it is up to him to seek assistance.
I wish to emphasize that my decision should not in any way be seen as detracting from the seriousness of the grievor’s misconduct. However, even in the face of a lack of true remorse, I have considered the grievor’s long service of almost 23 years, the fact that his discipline record is not significant, that he has never been previously discipline for the type of misconduct in issue here, and most importantly that the grievor had not properly had the benefit of learning from the receipt of progressive discipline. In those circumstances, and still with some hesitation, I have decided to give the grievor one last opportunity to salvage his career with the LCBO, but on extremely strict terms. Accordingly I order that the grievor be reinstated in his employment forthwith subject to the following conditions:
The grievor’s period of absence from the date of his discharge to the date of his reinstatement pursuant to this decision shall be noted on his record as a period of suspension without pay.
That period of suspension will be without accrual of seniority and without compensation for wages and any benefits lost.
The grievor must maintain a discipline-free record for a period of two years from the date of his reinstatement. Should he engage in misconduct in that period which gives cause for any discipline, he shall be subject to immediate discharge. At any arbitration the only issue would be whether or not he engaged in misconduct that give just cause for any discipline.
I remain seized with regard to the interpretation and implementation of this decision.
Dated this 11th day of August, 2005 at Toronto, Ontario